By Lehlohonolo Lehana.
The Constitutional Court on Friday dismissed uMkhonto weSizwe party (MKP) leader Jacob Zuma’s application to have the justices recused from the appeal case by the Electoral Commission of South Africa (IEC).
The IEC approached the ConCourt to challenged Zuma’s eligibility to serve in the National Assembly.
This is after the Electoral Court ruled that Zuma would be on the ballot for the elections, representing the Umkhonto weSizwe (MK) Party, despite his 15-months sentence to jail in 2021.
This, just 19 days before the 2024 national and provincial elections on May 29.
Last week, Zuma launched a counter-application to have them removed when the court hears his matter.
Counsel for Jacob Zuma, Adv Dali Mpofu on Friday argued, that the justices of the constitutional court who jailed Zuma for contempt in 2021 may harbour unconscious bias towards him, and should therefore recuse themselves from a case that will settle whether he can stand for parliament in elections later this month.
The application was dismissed, Deputy Chief Justice Mandisa Maya said after a morning of argument on this point. The court did not give reasons, but is expected to do so later in its judgment.
Mpofu made the claim on bias after Justice Zukisa Tshiqi asked him why Zuma did not object when the same judges who handed down his 15-month sentence heard his application for rescission of their judgment three years ago.
She added that reasonable applicants also did not object to the same high court bench that found against them, hearing their application for leave to appeal.
“I need to understand what your problem is with us,” she said.
Tshiqi asked why the current case, where the apex court must decide if that prison sentence disqualified Zuma from becoming a member of parliament, in terms of section 47(1)(e) of the Constitution, was any different.
This section bars anyone who has been sentenced to 12 or more months in prison without the option of a fine from becoming a member of the National Assembly for five years.
IEC upheld a complaint that Zuma was not eligible for parliament, only to be overtuned last month by the electoral court.
The court reasoned that the remission of the remainder of Zuma’s jail term by President Cyril Ramaphosa, after his early release on medical parole was found to have been unlawful, reduced the length of the sentence constitutional court imposed.
Mpofu replied that he was not seeking recusal because the judges could not rule on the impact of remission, but because they were conflicted on his other main points of argument, namely whether Zuma’s 2021 conviction was a conviction, and the sentence a lawful sentence.
It is Zuma’s case that he was jailed without a trial by the apex court, an argument that harps on the hybrid nature of contempt but throws overboard the established principle that punitive sanction can be imposed for civil contempt.
Zuma was jailed for defying an order of the court to testify before the commission of inquiry into state capture.
By Mpofu’s reasoning, about half the judges in the constitutional court should have recused themselves from the case.
Advocate TJ Magano, representing the Black Lawyers Association who have entered the case as amicus curiae (friends of the court) argued that the court should find a way to hear the case even if six judges are recused. He argued that acting judges could be appointed for the case, however Justice Nonkosi Mhlantla challenged this view by saying the Concourt had previously ruled that a recusal does not court as an absence, and therefore an acting judge could not be appointed for the case.
But advocate Tembeka Ngcukaitobi, for the IEC, argued that the application stood to be dismissed.
The test for recusal is a strict and objective one.
The constitutional court has in the past stressed that judges enjoy a presumption of impartiality and must hear cases where they can.
Ngcukaitobi reminded the court that an applicant who seeks recusal must also pass the so-called double reasonableness test, meaning the applicant must be reasonable and the apprehension of bias in itself must be reasonable.
The court is currently hearing the IEC and Zuma’s case on whether he is fit for Parliament.